132 S.W.2d 989 (Mo. 1939), 35998, Wrigley v. Wrigley

Docket Nº:35998
Citation:132 S.W.2d 989, 345 Mo. 207
Opinion Judge:DALTON
Party Name:Lola Wrigley v. Alva Wrigley and Elias Wrigley, Appellants
Attorney:Breit & Roberts for appellants. Lloyd W. Booher and Ralph R. Hulse for respondent.
Judge Panel:Dalton, C. Hyde and Bradley, CC., concur.
Case Date:November 03, 1939
Court:Supreme Court of Missouri
 
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Page 989

132 S.W.2d 989 (Mo. 1939)

345 Mo. 207

Lola Wrigley

v.

Alva Wrigley and Elias Wrigley, Appellants

No. 35998

Supreme Court of Missouri

November 3, 1939

Appeal from Andrew Circuit Court; Hon. R. B. Bridgeman, Judge.

Affirmed.

Breit & Roberts for appellants.

(1) In a case where fraud is charged, fraud is not presumed, but must be proved, and the burden of proof is upon the plaintiff. Albert v. Besel, 88 Mo. 153; Robinson v. Dryden, 118 Mo. 539; Bank v. Worthington, 145 Mo. 100; Mansur-Tebbetts Imp. Co. v. Ritchie, 143 Mo. 611. (2) Where on a charge of fraud, the evidence is as consistent with honesty as with dishonesty it will be construed in favor of the former. Webb v. Darby, 94 Mo. 621; Robinson v. Dryden, 118 Mo. 539. (3) Where, in such case, there is doubt as to the construction to be given to the conduct of the parties, it should be resolved in favor of the defendant. Webb v. Darby, 94 Mo. 621; Robinson v. Dryden, 118 Mo. 539. (4) It is the settled law in this State, that a debtor may prefer one creditor over another, by direct payment or transfer of property, providing the property is taken in satisfaction or assumption of a just demand, and not as a mere scheme to secure the property to the debtor. Wall v. Beedy, 161 Mo. 637; Shelley v. Booth, 73 Mo. 74; Albert v. Besel, 88 Mo. 150; Burston v. Fennewald, 2 S.W.2d 824; Wood v. Porter, 179 Mo. 65; Meyer Bros. Drug Co. v. White, 165 Mo. 136; Bangs Milling Co. v. Burns, 152 Mo. 350. (5) Conveyance of son's property to father for payment of bona fide debt if accepted in good faith by the father is valid, even though the son intended thereby to hinder and delay other creditors and the father knew of son's intent. Burston v. Fennewald, 2 S.W.2d 824. (6) Parol testimony is admissible to explain the consideration expressed in the deed. Kincaid v. Irvine, 140 Mo. 615; Baile v. St. Joseph F. & M. Ins. Co., 73 Mo. 371; Edwards v. Smith, 63 Mo. 119; Aull Saving Bank v. Aull's Admr., 80 Mo. 201; O'Day v. Conn, 131 Mo. 327. (7) Party relying on gift must prove that the transaction was a gift by evidence which is clear and unequivocal, and establishes such fact beyond reasonable doubt. Cremer v. May, 8 S.W.2d 110; Morley v. Prendiville, 316 Mo. 1094, 295 S.W. 563; Tygard v. Falor, 163 Mo. 234, 63 S.W. 672; Townsend v. Schaden, 275 Mo. 227, 204 S.W. 1076; Newell v. Edom, 242 S.W. 701.

Lloyd W. Booher and Ralph R. Hulse for respondent.

(1) Voluntary conveyance is fraudulent as to existing creditors, regardless of intent, if conveyance leaves debtor without means to pay debts. Friedel v. Bailey, 44 S.W.2d 9, 202 Mo. 309. A conveyance without consideration is constructively void as to existing creditors when made by debtor under embarrassing circumstances. Herley v. Taylor, 78 Mo. 238; Barber v. Nunn, 205 S.W. 14. (2) Equity court must examine most carefully circumstances surrounding conveyances between close relatives which injuriously affect creditors' rights. Daggs v. McDermott, 34 S.W.2d 46. Under this section a father may give valid preference to his son but relationship of parties to transfer which defeats just claims of other creditors is circumstance to be considered in determining good faith of transaction, which must be closely scrutinized by court, where fraud is charged by defeated creditors. Koenig v. Oswald, 82 F.2d 85; Matz v. Miami Club, 128 S.W.2d 975; Black v. Epstein, 221 Mo. 286; Munford v. Sheldon, 9 S.W.2d 907. (3) While debtor has rights to prefer one creditor to another by applying property to payment of his debt to exclusion of others, if creditor, knowing of debtor's insolvency, aids debtor in concealing property from other creditors, transaction is fraudulent. Friedel v. Bailey, 44 S.W.2d 9. Payment of valuable consideration does not protect grantee when he has knowledge of intent to defraud creditors and participation therein. Emlet v. Gillis, 63 S.W.2d 12. (4) Transactions between parties occupying intimate and confidential relationship are subject to close scrutiny. Lavette v. La Force, 71 Mo. 353. A false recital as to the consideration in a deed or an unusual method of transacting business are "badges of fraud." Snell v. Harrison, 16 S.W. 152.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

[345 Mo. 209] This is a suit in equity to set aside an alleged fraudulent conveyance of real estate. Plaintiff is the former wife of defendant Alva Wrigley. Alva Wrigley and Elias Wrigley, his father, are defendants. Plaintiff, on November 21, 1935, had obtained a decree of divorce, the custody of two minor children, and a judgment against Alva Wrigley for $ 25 per month, beginning [345 Mo. 210] March 1, 1936, for support and maintenance of said minor children. The present suit was instituted after six monthly installments accrued under the judgment and remained unpaid. The deed sought to be set aside was from Alva Wrigley to his father, and conveyed a house and lot located in the city of Savannah, Andrew County...

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